Top court rules that constitution allows a ban on gay marriage

by Anthony Glassman
and Eric Resnick

Olympia, Wash.--A sharply divided Washington state supreme court ended months of speculation on July 26, ruling against marriage equality in the state.

The 5-4 ruling that the state�s 1998 Defense of Marriage Act does not violate the state constitution spurred one concurring opinion and three dissenting ones.

The decision overturns lower court rulings in King and Thurston counties holding the act is a violation, and answers the question as to whether or not the state legislature has the constitutional authority to bar same-sex marriages with a �yes.�

However, it does not forbid the legislature from changing the definition of marriage to include same-sex couples.

The case before the Washington Supreme Court was created by the joining of two separate cases, Andersen v. King County and Castle v. State. The cases were joined to expedite the process of moving them through the judicial system.

The ruling leaves Massachusetts as the only state that allows full same-sex marriage.

In the majority opinion, Justice Barbara Madsen attributes the decision to strict constitutional review of the marriage ban, not the court�s opinion on whether or not same-sex marriage should be legal.

�In reaching this conclusion, we have engaged in an exhaustive constitutional inquiry and have deferred to the legislative branch as required by our tri-partite form of government,� she wrote. �We see no reason, however, why the legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington.�

The Washington ruling follows on the heels of judicial defeats in New York, where the state�s highest court ruled that same-sex couples did not have the right to marry, and in Georgia, where the legality of the state�s constitutional ban on same-sex marriage was upheld.

In the Georgia case, same-sex marriage supporters argued that the constitutional amendment that passed last November violated constitutional provisions on ballot box initiatives, combining separate issues into one vote. The court ruled, however, that same-sex marriage and civil unions were essentially the same thing, and that the amendment was therefore legally put on the ballot.

Cases are still pending in lower courts in Connecticut, Indiana and California, and in the Supreme Court in New Jersey.

A sharply divided court

The court was highly divided on all issues presented, and issued five separate opinions, three of which were dissenting.

The lead opinion, written by Madsen, was also signed by Chief Justice Gerry Alexander and Associate Chief Justice Charles W. Johnson.

Like the New York high court ruling earlier this month, which Madsen quotes, this opinion uses the lowest legal standard, �rational basis,� to determine whether or not gay and lesbian couples can be excluded from the fundamental right of marriage by an act of the legislature.

�The plaintiffs have not established that they are members of a suspect class or that they have a fundamental right to marriage that includes the right to marry a person of the same sex,� wrote Madsen.

�Under this standard,� she continued, �DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children�s biological parents. Allowing same-sex couples to marry does not, in the legislature�s view, further these purposes.�

�DOMA bears a reasonable relationship to legitimate state interests�procreation and child-rearing,� Madsen continued.

�The people of Washington have not had in the past nor, at this time, are they entitled to an expectation that they may choose to marry a person of the same sex,� Madsen wrote.

Both sexes barred from gay marriage

In a nearly mirror image of the New York decision, Madsen opined, �DOMA does not violate the state constitution�s equal rights amendment because that provision prohibits laws that render benefits to or restrict or deny rights of one sex. DOMA treats both sexes the same; neither a man nor a woman may marry a person of the same sex.�

That amendment appears to be broader, reading: �Equality of rights and responsibilities under the law shall not be denied or abridged on account of sex.�

To get around that, Madsen found that homosexuality is behavioral, and not immutable, and supported it with a Ninth Circuit Court of Appeals decision in a case involving a transgender woman seeking asylum that says gays and lesbians are not a �suspect class,� and as such are not entitled to constitutional rights that others who are part of a �suspect class� may have.

Political success used against gays

Madsen also cites non-discrimination laws of Washington cities and the state law amended this year to include gays and lesbians, and that there are openly gay and lesbian elected officials at every level of Washington government, to determine that same-sex couples have plenty of opportunity to function in society.

�The enactment of provisions providing increased protections to gay and lesbian individuals in Washington shows that as a class gay and lesbian persons are not powerless but, instead, exercise increasing political power,� Madsen wrote.

This analysis allows Madsen to say that the DOMA law did not result from anti-gay sentiments or animus. She also noted that some of the same legislators voted for both laws.

�While the state agrees that marriage is a fundamental right,� wrote Madsen, �it says that it does not include same-sex marriage.�

Tradition cited

Madsen sided with the state�s argument that �there is no history and tradition of same-sex marriage in this country, and the basic nature of marriage as a relationship between a man and a woman has not changed. With the exception of Massachusetts, no state permits same-sex marriage.�

�Although marriage has evolved,� wrote Madsen, �it has not included a history and tradition of same-sex marriage in this nation or Washington State.�

Justice James M. Johnson�s concurring opinion goes even farther than did Madsen in its use of tradition. Justice Richard B. Sanders joined this opinion.

�Marriage is the union of one man and one woman, and every Washington citizen has a constitutional right to enter into such a marriage,� wrote Johnson. �This understanding of marriage has been continuously recognized throughout the history of the United States and of the state of Washington, including Washington territorial law.�

�Every United States Supreme Court decision concerning the right to marry has assumed marriage as the union of one man and one woman,� wrote Johnson.

Strong dissents

Justice Bobbe J. Bridge was part of two dissenting opinions--one he authored, the other he joined with Justice Mary E. Fairhurst.

These two dissents are the most prolific and the most criticized in the majority opinions, showing a definite split in the court.

�The impact of this case upon the plaintiff couples and their children is both far reaching and deeply saddening,� wrote Bridge. �The impact extends to all of Washington�s gay and lesbian citizens and to the many fair-minded Washington citizens who hoped for a different result in this case.�

�What we ought not to address is marriage as the sacrament or religious rite�an area into which the state is not entitled to intrude at all and which is governed by articles of faith,� wrote Bridge.

�What we have not done is engage in the kind of critical analysis the makers of our constitution contemplated when interpreting the limits on governmental intrusion into private civil affairs; what we have done is permit the religious and moral strains of the Defense of Marriage Actto justify the state�s intrusion.

Bridge also concludes that the state will, at a future time, be embarrassed by the majority decision.

Justices Tom Chambers and Susan J. Owens also signed the Fairhurst dissent, and offered one of their own authored by Chambers.

That opinion sharply disagrees with Madsen on the matter of marriage only being a fundamental right when the couple are opposite-sex, and on the use of federal law, not state law, to determine it so.

�I conclude that properly read, Article I, Section 12 of the Washington Constitution protects us against all governmental actions that create unmerited favoritism in granting fundamental personal rights,� wrote Chambers.

Fairhurst�s strongly worded dissent blasts the entire premise the majority rests on.

�Neither an objective analysis of relevant law nor any sense of justice allows me to agree with the plurality� opinion, Fairhurst wrote.

�The plurality and concurrence condone blatant discrimination against Washington�s gay and lesbian citizens in the name of encouraging procreation, marriage for individuals in relationships that result in children, and the raising of children in homes headed by opposite-sex parents, while ignoring the fact that denying same-sex couples the right to marry has no prospect of furthering any of those interests.�

�Furthermore,� wrote Fairhurst, � �history and tradition� should not control us where that history and tradition merely reflect that a popular majority is willing to denigrate the rights of a minority group.�